97% of divorces of couples with children and whose case is resolved in the courts has a high level of conflict, ie, the parties argue over issues such as housing, alimony or child custody. This is one of the results of the first Family Law Observatory, a survey of 401 of the more than 2,000 members of the Spanish Association of Family Lawyers (Aeafa), which was presented this Saturday in Madrid. The survey allows to identify the times of resolution of the separations, much larger in non-specialized courts, the degree of adaptation of minors to joint custody -according to the perception of lawyers- or the importance of housing as a major focus of hostilities in couples with children.
In 2018, there were more than 111,000 marital dissolution lawsuits -separations and divorces- in the courts, according to data from the General Council of the Judiciary. Of these, some 65,000 reached an agreement between the parties and another 46,000 ended up in the hands of the judges. The report of the Aeafa reveals that divorces without agreement take more than three and a half years to settle when they are processed through courts and provincial hearings not specialized in family law. In specialized courts, the time is reduced to two years on average counting both instances. "The time of delay is a concern, depending on whether the court is specialized in family, the duration of the procedure is doubled, both in contentious divorces and in those agreed upon," says María Jesús Lozano, president of Aeafa. 85% of divorces by mutual agreement is resolved by specialized courts of first instance in less than six months. The percentage drops to 49% when they settle in the generalists.
"The processes can not last so long, you need a quick response," says Lozano. "We have first-class justice, enjoyed by those who live in cities where there are specialized courts, with judges and expert prosecutors, and a second category, where there are not," criticizes the lawyer. "The survey yields two fundamental conclusions: it is necessary to create a specific jurisdiction and address a profound reform of the rules of family law, which are 30 years ago and do not adapt to the current reality," he continues. "There are couples who do not get married and they also get separated, there are families where the children of a first marriage live with those of the second, what happens in those divorces, the legislation does not provide an answer," he continues.
In cases that are resolved in court, when there is no offspring, the confrontation high or very high is limited to 16% of the occasions, according to the appreciations of the lawyers. That is, the level of conflict increases considerably when there are children. "It is discussed by the system of custody – single or shared – for the maintenance of food, for housing, which is the biggest conflict now," he continues. 76% of the lawyers consider that the litigation over the custody of the children is minor when the problem of the house is already solved.
"The parent who holds exclusive custody has the use of housing until the children reach the age of majority, in case of shared custody, the Civil Code does not provide anything, leaving the decision of the judge," says Lozano. "Family paradigms have changed so much that the legislator must address them," he adds. "It is also necessary to demand agile procedures, when a sentence is not fulfilled, because the pension is not paid or the visit regime is not followed, it is inadmissible for it to take five or six months to demand that the judge's decision be complied with," he says. Lush. "A quick response reduces the risk of violence."
79% of the lawyers affirm, based on what the parents tell them, that the adaptation of the minors to the joint custody is satisfactory or very satisfactory, both in cases in which this formula has been agreed upon by the parents. parents as when it has been imposed by the court to one of the parties. 2% consider it unsatisfactory and 19% unsatisfactory. Lozano points out that the association is not positioned on the recommended model – shared or exclusive custodia for a parent – but advocates that it be studied case by case. In 2017, this system was granted almost 30% of the time, according to INE data.
"The Civil Code does not establish in any case which model is a priority, in our legal system the possibility of shared custody was introduced in 2005. It is absolutely ruled out in processes of gender violence," explains the lawyer. "The Supreme Court has indicated that it is the desirable system, with the judgments that it has been dictating, especially since 2011 or 2012, the mentality has changed," he adds.
75% of the lawyers surveyed consider that in shared custody the distribution of the residence time of the children with each parent more suitable for the stability and routines of the children is weekly. 78% of the lawyers think that the system of 'house nest' – the children live in the family house permanently and the parents alternate, depending on the period of custody – does not work. 17% believe that it is only effective when the courts so decide, to favor the sale of the property.